IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MICHAEL LANCENESE, :

:

Plaintiff, :

:

v. : NO. 05-CV-5951

:

VANDERLANS AND SONS, INC., :

:

Defendant. :

MEMORANDUM

Presently pending is Defendant’s Motion for Summary Judgment, and Plaintiff’s

response thereto. For the following reasons, Defendant’s Motion will be granted in part, and

denied in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

On June 10, 2005, Plaintiff Michael Lancenese was injured in an accident involving a

Lansas domehead plug (hereinafter “plug”), which was manufactured by Defendant Vanderlans

and Sons. The plugs are used to test the integrity of pipes. They are inserted into either end of

a pipe and inflated. Air is then pumped into the pipe in order to test for leaks. Because “the

nature of the plug seal within the conduit involves pressure between the body member of the

plug and an interior wall of the conduit, failure of the plug, for example by fatigue or inadvertent

over inflation can cause injury to personnel near the plug.” Def.’s Motion for Summary

Judgment, Exhibit 4. To minimize the risk of injury, Defendant warns users to remain clear of

the area in front of the plug, and to “block” the ends of the plugs against potential movement. 

Def.’s Motion for Summary Judgment, Exhibits 2, 8.

At the time of the accident, Plaintiff was employed as a pipe foreman by Tru-Line

Contractors Inc., a subcontracting company involved in construction of a waste water treatment

plant. The plugs involved in the accident were manufactured and sold by Defendant to Marona

Case 2:05-cv-05951-JCJ Document 19 Filed 05/21/07 Page 1 of 11
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Construction Company, who in turn loaned the plugs to Tru-Line Construction Inc.. At the time

of his injury, Plaintiff was testing a 36" pipe for leaks. He inserted two of Defendant’s plugs into

each end of the pipe, inflated them, and injected air into the pipe in order to conduct the test.

After the test was completed, the air inside the pipe was released. Plaintiff became concerned

that the air was not being fully released, and he extended his arm in front of one of the plugs. 

At that moment, the plug discharged, striking Plaintiff in the hand and arm and causing his

injuries.

Plaintiff filed the instant action against Defendant alleging three Counts. In Count I

Plaintiff claimed liability under a negligence theory, in Count II liability under a strict liability

theory for design defects, manufacturing defects, and for failure to adequately warn, and in

Count III liability under a breach of express and implied warranties. 

II. LEGAL STANDARD

Summary judgment shall be awarded “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c). A genuine issue as to any material fact exists “if the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2025 (1986). 

A party seeking summary judgment bears the initial responsibility of identifying the basis

for its motion, along with evidence clearly demonstrating the absence of a genuine issue of

material fact. See Celotex Corp. v. Catreet, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986). 

Rule 56(e) of the Federal Rules of Civil Procedure requires the nonmoving party to supply

sufficient evidence, not mere allegations, for a reasonable jury to find in the non-movant’s favor. 

See Oldson v. General Elec. Astrospace, 101 F.3d 947, 951 (3d Cir. 1996). This evidence

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must be viewed in the light most favorable to the nonmoving party. See Anderson, 477 U.S. at

256.

III. DISCUSSION

Plaintiff now states that the claims for breach of express warranty and breach of implied

warranty of fitness for a particular purpose are voluntarily withdrawn. Pl.’s Response in

Opposition to Motion for Summary Judgment at 15, 16. Plaintiff also argues that they are not

advancing a design defect claim. Id. at 11. Therefore, summary judgment will be granted to

the portions of Count III which make claims for breach of express warranty and implied warranty

of fitness for a particular purpose, and to the extent that the language of Count II indicates a

claim for strict liability under a design defect theory.

A. Plaintiff’s strict liability claims

Under Pennsylvania law, “strict liability allows recovery when a defective product that is

‘unreasonably dangerous’ causes harm to a user or consumer.” Moyer v. United Dominion

Indus., 473 F.3d 532, 538 (3d Cir. 2007). The determination of whether a product is

“unreasonably dangerous” is a matter of law. Azzarello v. Black Brothers Co., 480 Pa. 547, 391

A.2d 1020 (Pa. 1978). In making this threshold determination, a trial judge must “engage in a

risk-utility analysis, weighing a product’s harms against its social utility.” Surace v. Caterpillar,

Inc., 111 F.3d 1039 (3d Cir. 1997). The Third Circuit identified some of the factors relevant to

this analysis:

(1) The usefulness and desirability of the product -- its utility to the user and to

the public as a whole; (2) The safety aspects of the product -- the likelihood that

it will cause injury, and the probable seriousness of the injury; (3) The availability

of a substitute product which would meet the same need and not be as unsafe;

(4) The manufacturer's ability to eliminate the unsafe character of the product

without impairing its usefulness or making it too expensive to maintain its utility;

(5) The user's ability to avoid danger by the exercise of care in the use of the

product; (6) The user's anticipated awareness of the dangers inherent in the

product and their avoidability, because of general public knowledge of the

obvious condition of the product, or of the existence of suitable warnings or

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instruction; and (7) The feasibility, on the part of the manufacturer, of spreading

the loss of [sic] setting the price of the product or carrying liability insurance.

Id. at 1046 (quoting Dambacher v. Mallis, 336 Pa. Super. 22, 50 n.5, 485 A.2d 408, 423 n.5

(Pa. Super. Ct. 1984). Plaintiff argues that this analysis is only appropriate in design defect

cases, not in manufacturing defect cases, and that since they are not alleging a design defect,

that the court should not engage in this analysis. Pl.’s Response in Opposition to Motion for

Summary Judgment at p. 11.

Pennsylvania law recognizes three defects that are subject to strict liability;

manufacturing, warning, and design defects. Phillips v. Cricket Lighters, 576 Pa. 644, 665, n.1,

841 A.2d 1000, 1012, n.1 (Pa. 2003). The parties have not cited, and the court has not found,

any authority supporting the proposition that the “unreasonably dangerous” determination does

not apply to manufacturing defects. The Azzarello Court defined the word “defect” for the

purposes of products liability in Pennsylvania as “not limited to its usual meaning i.e., a fault,

flaw or blemish in its manufacture or fabrication. Rather, the critical factor under this

formulation is whether the product is ‘unreasonably dangerous.’” Id. at 555 (emphasis added).

The Court, having specifically recognized manufacturing defects as falling within this area, did

not exclude such defects from the question of whether the product was “unreasonably

dangerous.” Additionally, the Superior Court cases which have outlined the factors to be

considered in making this determination have never limited the applicability of the test to design

defect cases. See Dambacher, 336 Pa. Super. at 50 n.5; Fitzpatrick v. Madonna, 424 Pa.

Super. 473, 476-77, 623 A.2d 322, 324 (Pa. Super. Ct. 1993); Phillips v. A.P. Green

Refractories Co., 428 Pa. Super. 167, 180, 630 A.2d 874, 881 (Pa. Super. Ct. 1993); Riley v.

Warren Mfg., Inc., 455 Pa. Super. 384, 391, 688 A.2d 221, 225 (Pa. Super. Ct. 1997).

The court therefore concludes that the risk-utility analysis is appropriate in the instant

action, and will apply the test to the Lansas domehead plugs.

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1. The usefulness and desirability of the product -- its utility to the user and

to the public as a whole

The evidence clearly indicates the usefulness and desirability of using domehead plugs

in industrial settings to test the integrity of pipes. The deposition testimony of a variety of

witnesses, including the Plaintiff, indicate that plugs are routinely used in order to insure that

pipes do not leak. Def.’s Motion for Summary Judgment, Exhibits 5, pp. 30-32, Exhibit 11, p 25,

Exhibit 12, pp. 16-17. The testing is necessary in order to prevent potentially costly repairs in

the future; in the instant case, the testing was being conducted prior to pouring concrete over

the pipes. Def.’s Motion for Summary Judgment, Exhibit 12, p. 44. The court concludes that

the product is useful and desirable in this industry, and that this factor therefore weighs in favor

of Defendant.

2. The safety aspects of the product -- the likelihood that it will cause injury,

and the probable seriousness of the injury

Defendant concedes that the plugs carry a risk of serious injury. Def.’s Motion for

Summary Judgment at p. 13. The nature of the test, which involves using the plugs to block

both ends of a pipe and then fill the pipe with air, creates a risk that the plug will eject with great

force. However, a product is not defective simply because accidents may occur during its use.

See Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (Pa. 1975); Pegg v.

General Motors Corp., 258 Pa. Super. 59, 391 A.2d 1074 (Pa. Super. Ct. 1978). It is

appropriate to consider the actual rate of injuries caused by a particular product. See Monahan

v. Toro Co., 856 F. Supp. 955, 958 (E.D. Pa., 1994). In this case, the actual rate of injury is

apparently low. Defendant reports only four claims of injury, and none of the witnesses who

gave deposition testimony, including Plaintiff, had ever witnessed any injury prior to this

accident. Def.’s Responses to Pl.’s Interrogatories at ¶ 17; Def.’s Exhibit 12, p. 38, Exhibit 14,

p. 25. Because of the low rate of injury, the court concludes that this factor weighs in favor of

Defendant.

Case 2:05-cv-05951-JCJ Document 19 Filed 05/21/07 Page 5 of 11
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3. The availability of a substitute product which would meet the same need

and not be as unsafe

The record indicates that there is not a substitute product which would meet the same

need and not carry similar risks. The nature of the testing process requires pressure that could

result in the expulsion of whatever device is used to seal the pipe. Therefore, the court

concludes that this factor weighs in favor of Defendant.

4. The manufacturer's ability to eliminate the unsafe character of the

product without impairing its usefulness or making it too expensive to

maintain its utility.

The manufacturer cannot fully eliminate the unsafe character of the product, because,

once again, of the nature of the testing process. Defendant does, however, admit that they

could include blocking devices with each set of plugs. Def.’s Motion for Summary Judgment at

p. 14. Viewing the evidence in the light most favorable to the non-moving party, the court

concludes that Defendant could, to a certain degree, eliminate the unsafe character of the

product by including such blocking devices. The court, therefore, finds that this factor weighs in

favor of Plaintiff.

5. The user's ability to avoid danger by the exercise of care in the use of the

product. 

This factor weighs heavily in favor of Defendant. The danger inherent in the plugs can

be avoided by standing clear of the areas directly in front of the plug, and thus, avoiding being

in the path of the plug should it eject. The “proper focus ... is an objective inquiry into whether

the class of ordinary purchasers of the product could avoid injury through the exercise of care in

use of the product...” Surace v. Caterpillar, Inc., 111 F.3d 1039, 1052 (3d Cir. 1997). Here, the

ordinary consumers of the domehead plugs are construction workers engaged in the testing of

the integrity of pipes. The record indicates that domehead plugs are in common use in the pipe

industry for testing pipelines. Def.’s Motion for Summary Judgment, Exhibit 5, pp. 30, 63-64.

The exercise of due care for such individuals would include standing clear of the area in front of

Case 2:05-cv-05951-JCJ Document 19 Filed 05/21/07 Page 6 of 11
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the plug until the air inside the pipe has been fully released. 

6. The user's anticipated awareness of the dangers inherent in the product

and their avoidability, because of general public knowledge of the obvious

condition of the product, or of the existence of suitable warnings or

instruction.

This factor similarly weighs heavily in favor of Defendant. The plugs are not consumer

products, as they are used in construction sites for the very specific purpose of testing the

integrity of pipes. There is, consequently, very little general public knowledge of the obvious

condition of the product. The product is marketed specifically to the construction industry, and

the anticipated users are therefore likely to have some experience and understanding of the

dangers inherent in the product. In any event, the warnings affixed to the product are suitable

to provide the user with awareness of the dangers inherent in the plugs and their avoidability.

Plaintiff argues that no warnings were present on the plug, and in support of this

proposition attaches the expert report of Paul Dreyer, who concluded that no warning tag was

attached to the plug. This conclusion is contradicted by the evidence on the record. The report

of the Occupational Safety and Health Administration (hereinafter “OSHA”) states that “the

following pertinent warnings were visible on the [test] bag: 

BLOCK PLUG AGAINST MOVEMENT

STAY CLEAR WHILE IN USE.” 

Def.’s Motion for Summary Judgment, Exhibit 18.

The OSHA report also states that Defendant’s literature included a warning which read

“Always stay out of the ‘DANGER ZONE’ This is the area around the pipe line containing the

plug.” Id. The presence of the warnings on the plug itself are further indicated in several

pictures attached both to the OSHA report, and as Exhibit B of Defendant’s Reply in Support of

Motion for Summary Judgment.

Additionally, the relevant question is whether the warnings were sufficient at the time

Case 2:05-cv-05951-JCJ Document 19 Filed 05/21/07 Page 7 of 11
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that product left the manufacturer. Under comment "n" of Section 388 of the Restatement

(Second) of Torts, a supplier's duty to warn is discharged by providing information to third

parties upon whom it can reasonably rely to communicate the information to the ultimate users

of the product. See Phillips v. A.P. Green Refractories Company, 428 Pa. Super. 167, 630 A.2d

874, 882 (Pa. Super. Ct. 1993) (holding that Section 388 is available as a defense in strict

liability actions). See also Smith v. Walter C. Best, Inc., 927 F.2d 736, 739-42 (3d Cir. 1990). 

Here, Defendant provided the warning materials when it sold the plugs to Marona Construction

Company, who later lent the plugs to Plaintiff’s employer. Def.’s Resp. to Pl.’s Interrogatories at

¶ 9.

7. The feasibility, on the part of the manufacturer, of spreading the loss by

setting the price of the product or carrying liability insurance.

Although a manufacturer is usually able to spread the cost of a plaintiff's loss to all

consumers of a product by raising the price of the product, the feasibility of doing so depends

upon balancing the remaining factors in the risk/utility analysis. See Riley v. Becton Dickinson

Vascular Access, 913 F. Supp. 879, 880 (E.D. Pa. 1995); Monahan, 856 F. Supp. at 955; Van

Buskirk v. West Bend Co., 100 F. Supp. 2d 281, 289 (E.D. Pa. 1999). If after examining the first

six factors, the utility of the product outweighs its risks, then shifting the cost of the plaintiff's

loss to the defendant is not fair, and therefore, not feasible. Id. Here, the court has concluded

that five of the six factors weigh in favor of Defendant. Therefore, Defendant should not have

to spread among its customers the economic loss resulting from injuries from a product for

which the risk of harm can be eliminated by proper use of the product and by heeding the

safety warnings.

Weighing the above factors, the court concludes that the domehead plugs

manufactured by Defendant are not “unreasonably dangerous.” As a result, summary judgment

will be granted as to Count II.

Case 2:05-cv-05951-JCJ Document 19 Filed 05/21/07 Page 8 of 11
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B. Plaintiff’s negligence claims

Plaintiff has produced sufficient evidence to survive summary judgment on the

negligence claim in Count I. Defendant admits that there is a dispute as to why the plug failed. 

Def.’s Motion for Summary Judgment at p. 2. Plaintiff’s expert, Mr. Dreyer, concluded that the

plug failed as a result of improper vulcanization. Pl.’s Response in Opposition to Motion to

Dismiss, Exhibit C. Mr. Dreyer identified several allegedly negligent acts or omissions in his

report, including 1) failure to employ adequate quality control procedures, 2) failure to inspect or

test the critical steam supply pressure regulators used in the manufacturing process to ensure

that the vulcanization process parameters are uniform, 3) failure to utilize adequate domehead

plug pressure testing under the most rigorous use to ensure that the product will perform as

designed and expected, and 4) failure to mimic field conditions when testing the plug. Id. 

These allegations are sufficient to establish a genuine issue of material fact, and therefore

summary judgment would be inappropriate.

C. Plaintiff’s breach of warranty claims

As discussed above, Plaintiff has voluntarily withdrawn both the breach of express

warranty claims and the breach of the implied warranty of fitness for a particular purpose

claims. What remains in Count III is a claim for breach of the implied warranty of

merchantability. To establish a breach of the implied warranty of merchantability, Plaintiff must

show that the product was defective. Altronics of Behlehem, Inc. v. Repco, Inc., 957 F.2d 1102

(3d Cir. 1992). As discussed above, Plaintiff has produced sufficient evidence of negligent

manufacturing to survive summary judgment on the claims for negligence in Count I. That

evidence is also sufficient to survive summary judgment on a breach of the implied warranty of

merchantability.

Defendant argues that they disavowed the implied warranty of merchantability. Def.’s

Motion for Summary Judgment at p. 15. An implied warranty for merchantability can be

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excluded under Pennsylvania law. 13 Pa.C.S. § 2316(b). The implied warranty of

merchantability is, however, “so commonly taken for granted that its exclusion from a contract is

recognized as a matter threatening surprise and therefore requiring special precaution. Thus, to

exclude the implied warranty of merchantability, the exclusionary language must mention the

term 'merchantability' and be conspicuous." Moscatiello v. Pittsburgh Contractors Equipment

Co., 407 Pa. Super. 363, 369, 595 A.2d 1190 (Pa. Super. Ct. 1991). 

The language Defendant relies on in support of its argument that it disavowed the

warranty is “Manufacturer specifically disavows any other representation, warranty, or liability

relating to the condition or use of this product.” This language does not specifically mention

merchantability, and is therefore insufficient to exclude the warranty. Therefore, Defendant’s

Motion for Summary Judgment as to the implied warranty of merchantability in Count III will be

denied.

An appropriate order follows.

Case 2:05-cv-05951-JCJ Document 19 Filed 05/21/07 Page 10 of 11
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MICHAEL LANCENESE, :

:

Plaintiff, :

:

v. : NO. 05-CV-5951

:

VANDERLANS AND SONS, INC., :

:

Defendant. :

ORDER

AND NOW this 21st day of May, 2007, IT IS HEREBY ORDERED that Defendant’s

Motion for Summary Judgment is GRANTED in part, and DENIED in part. IT IS FURTHER

ORDERED that,

1. Defendant’s Motion for Summary Judgment as to Count II is GRANTED,

2. Defendant’s Motion for Summary Judgment as to the portions of Count III

that allege breach of express warranty and breach of the implied warranty

of fitness for a particular purpose are GRANTED;

3. Defendant’s Motion for Summary Judgment is DENIED in all other

respects.

BY THE COURT:

s/Clifford Scott Green 

CLIFFORD SCOTT GREEN, S.J.

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